The Hitchhiker’s Guide to the Ethics Process in the House

The Speaker's Lobby: The Hitchhiker's Guide to the Ethics Process in the House

By: Chad Pergram, FOX News

17 August 2010

An ethics maelstrom is now lashing Capitol Hill.

Reps. Charlie Rangel (D-NY) and Maxine Waters (D-CA) are demanding formal ethics proceedings to clear their names. Both feel they did no wrong and want to argue their cases to colleagues. And many lawmakers are crying foul about operations at the Office of Congressional Ethics (OCE). The House has long had the internal Ethics Committee comprised of sitting members who scrutinize the conduct of their contemporaries and staff. But a bipartisan House vote two years ago created the OCE, an "external" board that can take referrals from outside Congress and conduct preliminary inquiries. House Speaker Nancy Pelosi (D-CA) wanted to develop the OCE as part of her movement to "drain the swamp" when Democrats took control of Congress in 2006.

Journalists have written and broadcast thousands of articles and reports about the ethics troubles facing Rangel and Waters. But very few people inside Congress, let alone outside, understand how the ethics process works.

For years, the House has had an official "Ethics" Committee. I put "Ethics" in quotations there because it's not actually called the "Ethics Committee." Its formal title is the Committee on Standards of Official Conduct. But everyone calls it the Ethics Committee. In fact its website is even www.ethics.house.gov.

Here's how it works:

Rarely a month goes by when someone doesn't breathlessly call me asking about why we're not reporting on Representative So-and-So and how the Ethics Committee is investigating them.

If the lay-person were correct in asserting that the Ethics Committee is "investigating" such-and-such Congressman, I dare say that all 435 members would be considered to be "under" investigation.

That's simply not fair nor accurate. And here's why:

For starters, the Ethics Committee studies thousands of issues every year. Most of it is pretty mundane. In other words, say a lawmaker wants to hold a fundraiser or go on a certain trip. Maybe there's a question about a hiring practice or a payroll issue. Just to be sure, they inquire with the Ethics Committee. Some matters require a simple phone call. Others entail lengthy documentation.

This is what the Ethics Committee does. It constantly sifts through requests and gives advice to help lawmakers stay on the straight and narrow. Most of that is done by members and their aides ringing up the Ethics Committee on their own to ask for guidance or permission.

Is it fair to characterize those lawmakers as being "investigated" by that panel? Sure, they're taking a look at something a lawmaker may do or has already done. But it's not accurate to describe that as an investigation or cast aspersions on that particular member. Particularly if they simply asked the Ethics Committee for a decision in an effort to comply with House rules.

But the Ethics Committee does in fact conduct genuine probes. Which is what Rangel, Waters and a host of others have gone through.

Here's what may prompt a potential investigation:

One lawmaker believes a fellow member may have run afoul of House rules. So he or she drafts a referral and sends it to the Ethics Committee.

The Ethics Committee investigated former House Speaker Newt Gingrich (R-GA) in 1996 and 1997. But that inquiry was so onerous and so politically-charged that lawmakers from both sides declared an unofficial ethics "truce" from 1997 until 2004. That's when former-Rep. Chris Bell (D-TX) broke the alleged truce and filed a series of complaints with the committee against former House Majority Leader Tom DeLay (R-TX).

It's also worth noting that it was Rangel who referred himself to the ethics panel. Media scrutinized him for months about his failure to pay taxes on a Caribbean vacation villa, his use of multiple, rent-controlled apartments in Harlem and the alleged misuse of Congressional stationary for fundraising purposes.

Confident of no wrongdoing, Rangel took the extraordinary step of referring himself to Ethics Committee in an effort to clear his name.

"I'm as clean as the driven snow," Rangel said in a summer of 2008 interview with FOX.

A footnote here. After announcing he would refer himself to the Ethics Committee, those of us in the press waited patiently for Rangel to file his paperwork with the panel. After several days of hearing nothing, I made a mental note to check with his office one day as I walked into the Capitol for work.

It was there in the basement that I ran into Rangel's longtime aide Emile Milne. I asked Milne if the Congressman had made his referral yet.

At that, Milne waved an overstuffed, business envelope at me with Rangel's Congressional "frank" etched in the upper, right-hand corner.

Milne told me the envelope held the referral. But he was wandering in the labyrinth of corridors in the Capitol basement, desperately trying to locate the Ethics Committee's obscure offices. I told Milne I knew exactly where they were and would walk him there.

"Don't let the boss think FOX never did him any favors," I joked to Milne as I escorted him to the Ethics Committee suite.

Of course, what's ironic is that Rangel interpreted his approach to the Ethics Committee as very straight-forward. And two years later, it bubbled over into something much more.

The House Ethics Committee is compelled to at least review the complaint, whether sent over by a member or if another lawmaker lodged the complaint. This stage is usually worth a slight mention in the news. But it's still not fair to describe a lawmaker as being "under investigation." This first stage is just a rote inquiry. But it's news if the probe rises to the next level.

When tracking Congressional ethics cases, I often advise people to listen for the words "investigative subcommittee." If the Ethics Committee creates an investigative subcommittee, that means they've found something curious that demands deeper attention. In Congressional parlance, I sometimes liken this to a being pulled over by police. You may not have done anything wrong. You may have been speeding or weaving. Maybe you just have a tail light out or something appears odd with your license plates. You've not been arrested. You've not gotten a ticket. You've not been indicted. You've not been convicted. But you've been stopped. And the officer is going to investigate further.

That's precisely what happens when the Ethics Committee empanels an investigative subcommittee. And that step is significant.

Investigative subcommittees are comprised of a bipartisan group of lawmakers drawn from a pool of people who don't serve on the actual Ethics Committee. Each investigative subcommittee is assigned to study a given case. The House has recently empanelled investigative subcommittees to probe Rangel and Waters along with Rep. Laura Richardson (D-CA) Richardson was later cleared of wrongdoing.

The investigative subcommittee then does just what its name suggests: it investigates and issues a report. In the Richardson matter, investigators determined she didn't break House rules. But the panels studying the conduct of Waters and Rangel determined they may have violated the rules.

At this point, a lawmaker can either accept the punishment meted out by the investigative subcommittee or take it to the next level. For instance, two separate ethics probes of Tom DeLay triggered letters from the Ethics Committee that essentially slapped the Texas Republican on the wrist. In one of the DeLay episodes, the Ethics Committee also sanctioned the former leader and Rep. Candice Miller (R-MI) with letters of admonishment for applying too much pressure on a lawmaker to vote a certain way on a key bill. The committee also criticized former Rep. Nick Smith (R-MI) for exaggerating the tactics Delay and Miller applied on him.

But here's the difference between the DeLay/Miller/Smith episodes and what's gone down with Rangel and Waters: With DeLay/Miller/Smith, the investigative subcommittee penalized all lawmakers with a letter but not with a formal sanction recognized by the House. The "official" means of House discipline are reprimand, censure, expulsion and a fine. Because the investigative subcommittee did not recommend a more "serious" punishment for DeLay, Miller and Smith, it did not kick their cases up to the next level. Moreover, DeLay, Miller and Smith did not officially contest their sanctions nor ask for a chance to clear their names.

In fact, just Monday, DeLay indicated that he "disagrees with the admonishment and reject it." In another instance, the Ethics Committee attempted to curb DeLay's behavior. After that episode, DeLay said he would "accept the committee's guidance."

For the record, the House Ethics Committee even rebuked Chris Bell later for filing ethics charges against DeLay that contained "innuendo" and were "speculative."

In the case of Rangel, we know that an investigative subcommittee recommended he be reprimanded. It isn't clear what potential punishment the investigative subcommittee probing Waters recommended. Or even if it did suggest a punishment. At a press conference last week, Waters declined to answer that very question, hinting she was walking on narrow legal ground about she could or couldn't say.

The next step in the ethics process is the creation of an "adjudicatory subcommittee." In the cases of Rangel and Waters, the investigative subcommittee essentially "indicted" them, and released a "Statement of Alleged Violations" (SAV). If the lower-tier investigative subcommittee believes that a lawmaker's alleged transgressions deserve an official form of punishment (reprimand, censure, expulsion or fine), and if the lawmaker in question wants to challenge the findings, then the House forms an adjudicatory subcommittee. The adjudicatory subcommittee is essentially a judge and jury for the case. And the member accused of breaking the rules has a chance to defend him or herself.

Sometimes this stage is described as a "trial." And both Rangel and Waters have requested ethics trials in an effort to acquit themselves.

The House hasn't conducted a formal ethics trial since it considered the case of former Rep. Jim Traficant (D-OH) in 2002. The House eventually voted to expel Traficant. He later served time in a federal prison.

Regardless, the adjudicative phase in the ethics process is not final. Much has been written about Rangel attempting to forge a "settlement" with his investigators. First, if he did carve a deal, the investigative subcommittee would have to agree to it as well as the entire Ethics Committee.

If the adjudicatory subcommittee in fact conducts trials involving Rangel and Waters and decides to penalize either of them, it's also likely that finding would have to go before the full Ethics Committee. And again, the full House would probably be asked to vote on any punishment.

The House injected another wrinkle into the ethics process several years ago. As mentioned earlier, the House now has the Office of Congressional Ethics (OCE), an outside panel that can review potential ethics matters.

The difference is that the OCE is more of an "external" organization, whereas the Ethics Committee is "internal." The OCE is made up of six, bipartisan people who have a familiarity with Congress. Several OCE panelists are former House members.

The OCE can accept referrals from average citizens or watchdog groups about possible wrongdoing in Congress. But there are some safeguards. When the OCE receives a complaint, at least one member from each party must vote to establish a preliminary inquiry. After that, it takes three members to establish a second level of scrutiny.

The OCE can then submit its findings to the full Ethics Committee. But the ethics panel is not bound in any way to take the OCE's advice.

Even though the House voted 229 to 182 to empanel the OCE, it remains wildly unpopular among rank-and-file lawmakers from both parties.

"With this proposal, we are indicting ourselves," said former-Rep. Neil Abercrombie (D-HI) when the House cast its vote on the OCE.

In fact, Rep. Marcia Fudge (D-OH) has argued that the House abolish the OCE. When asked whether the House should terminate the OCE, Minority Leader John Boehner (R-OH) said he would "take a look."

Why all of these convoluted layers to help police the House? The Constitution is clear that both the House and Senate have the right to determine who sits in either chamber. It also indicates both bodies are charged with disciplining its membership. And something else: Between the Gingrich investigation and the incident when Chris Bell broke the purported ethics "truce," the formal ethics process lay dormant for seven years. When Democrats won control of the House in 2006, Nancy Pelosi promised to "run the most ethical Congress in history."

Like it or not, these are the fruits of those labors.

- Chad Pergram covers Congress for FOX News. He's won an Edward R. Murrow Award, the Joan Barone Award and a National Headliner Award for his reporting on Capitol Hill.

- The Speaker's Lobby refers to a long, ornate hallway that runs behind the dais in the House chamber. Lawmakers, aides and journalists often confer there during votes.